Ordon v. Karpie

223 F.R.D. 33, 2004 U.S. Dist. LEXIS 14417, 2004 WL 1698985
CourtDistrict Court, D. Connecticut
DecidedMarch 26, 2004
DocketNo. CIV. 3:01cv1951(AHN)
StatusPublished
Cited by5 cases

This text of 223 F.R.D. 33 (Ordon v. Karpie) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ordon v. Karpie, 223 F.R.D. 33, 2004 U.S. Dist. LEXIS 14417, 2004 WL 1698985 (D. Conn. 2004).

Opinion

RULING ON DISCOVERY MOTIONS

FITZSIMMONS, United States Magistrate Judge.

On February 19, 2004, the court heard oral argument on seven discovery motions pending before the court: defendants’ motions to preclude expert testimony or compel compliance [does. ##53,55,57,59,61]; defendants’ motion to compel [doc. # 63]; and plaintiffs motion to compel [doc. # 69]. After considering the arguments presented at oral argument and in counsel’s memoranda, the court orders the following.

Defendants’ motions to preclude or compel [docs. ## 53,55,57,59,61]

Defendants move to preclude the testimony of five of plaintiffs witnesses: Dr. Andrew Ordon (the plaintiff) [doe. # 53], Dr. Roy Winston [doc. # 55], Dr. Paula Moyna-han [doc #57], Mr. Robert Lucas, PA-C, [doe. #59], and Dr. Renato Calabria [doc. # 61], based upon alleged deficiencies in plaintiffs expert disclosures for these witnesses. In the alternative, defendants seek an order that plaintiff provide supplemental reports containing the omitted information by a date certain, and request additional time to depose the experts.

Federal Rule of Civil Procedure 26(a)(2)(B) requires a written report to accompany disclosure “with respect to a witness who is retained or specially employed to provide expert testimony____” Fed.R.Civ.P. 26(a)(2)(B). The report shall contain:

a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Id.

The basis and opinions requirement means “ ‘how” and ‘why’ the expert reached the conclusions and opinions to be expressed.” Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J.1996). The data and information refers to “ ‘what’ the expert saw, heard, considered, read, thought about or relied upon in reaching the conclusions and opinions to be expressed.” Id.

Dr. Ordon

Dr. Ordon, the plaintiff, is designated to offer expert testimony on the following topics: 1) that his treatment of Keith Balentine complied with all standards of care; 2) that the Connecticut consent decree and related proceedings caused plaintiff to suffer emotional distress including depression; 3) that drugs taken to treat plaintiffs emotional distress resulting from the consent decree caused plaintiffs peripheral neuropathies, including carpal tunnel syndrome; and 4) that he is unable to pursue his profession as a result. [Defs.’ Mot. (doc. # 53) at Ex. B.] The limited information provided in Dr. Or-don’s report does not comply with the requirements of Rule 26. The report does not state the basis for his opinions in any detail. The “data and information considered” section is woefully vague. For example, the report generally cross-references deposition testimony, medical records and chronologies, exhibits, and “drug use and side effect information” without identifying any specific documents or texts. It refers to “discussions with other physicians,” without a complete list of which physicians and the topic of the discussions.

Plaintiff argues that an expert report is not required for Dr. Ordon because he is the plaintiff and was not “specially retained” to testify. Although Dr. Ordon is a party to the lawsuit, the scope of his testimony includes expert opinion which, if elicited from another party, would be subject to Rule 26. The court has the discretion to impose a report requirement upon any individual who will offer expert testimony. See Advisory Committee Notes to 1993 Amendments to Rule 26, paragraph (2). The court finds no [36]*36reason to exempt Dr. Ordon from the requirement.

Plaintiffs representation that he will give only opinions about which he has already been deposed is not accurate. As the defendants point out, the issue of the alleged causal connection between the treatment of plaintiffs emotional distress and the development of carpal tunnel syndrome arose after the close of discovery, and plaintiff was never deposed on this topic. In any case, the fact that some of the information upon which Dr. Ordon relies in forming his opinion is identified in the deposition testimony does not relieve plaintiff from the obligation to provide a complete report in compliance with the Federal Rules. The court agrees with defendants that the proffered report does not offer a sufficient basis upon which the defendants may intelligently decide whether to depose the expert and otherwise prepare a defense. This limited disclosure does nothing to further the purposes of discovery. The purpose of requiring expert reports is to provide the opposing party with the scope of the opinion that will be provided at trial, to allow for an effective cross examination of the witness, and to limit the total number of depositions. Defendants’ motion [doc. #53] is GRANTED to the extent that it seeks a supplemental report and additional time to depose Dr. Ordon. A scheduling order appears at the end of this ruling.

Dr. Winston

Dr. Winston is designated to testify to the following: 1) that the Connecticut consent decree and related proceedings caused plaintiff to suffer emotional distress including depression; 2) that drugs taken to treat plaintiffs emotional distress resulting from the consent decree caused plaintiffs peripheral neuropathies, including carpal tunnel syndrome; and 3) that he is unable to pursue his profession as a result. [Def.’s Mot. (doc, # 55) at Ex. B.] Dr. Winston’s report is deficient in many of the same respects as Dr. Ordon’s; in fact, the data and information sections reference the same unidentified medical records, testimony, exhibits “drug use and side effect information”, and “discussions with physicians.”

Plaintiff argues that Dr. Winston need not provide an expert report because he is a treating physician. Dr. Winston is disclosed as having treated plaintiff for depression, and apparently for tarsal tunnel syndrome. The Federal Rules do provide an exemption for treating physicians. However, the exemption does not apply in certain circumstances:

To the extent that the treating physician testifies only as to the care and treatment of his/her patient, the physician is not to be considered a specially retained expert notwithstanding that the witness may offer opinion testimony under Fed.R.Evid. 702, 703 and 705. However, when the physician’s proposed opinion testimony extends beyond the facts made known to him during the course of the care and treatment of the patient and the witness is specially retained to develop specific opinion testimony, he becomes subject to the provisions of Fed.R.Civ.P. 26(a)(2)(B).

Wreath v. United States, 161 F.R.D. 448, 450 (D.Kan.1995).

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Cite This Page — Counsel Stack

Bluebook (online)
223 F.R.D. 33, 2004 U.S. Dist. LEXIS 14417, 2004 WL 1698985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ordon-v-karpie-ctd-2004.